Tuesday, December 26, 2006

The RIAA, in further support of its motion to compel Ms. Lindor's son to turn over his personal computer and listening devices in UMG v. Lindor, the RIAA submitted a 26-page curriculum vitae for its "expert", Dr. Doug Jacobson, to Magistrate Robert M. Levy:

This was despite the facts that the papers were due last week, that Ms. Lindor's son's attorney has objected to the use of expert testimony at all, and that the RIAA has never turned over a hard drive report to Ms. Lindor's attorneys.

Ms. Lindor's attorneys objected, and requested that the materials be stricken, that the plaintiffs' motion be denied, and that sanctions be awarded against plaintiffs:

A pro se litigant is a person representing himself, without an attorney.

The court ruled as follows:

[T]here is a genuine issue of material fact that precludes granting summary judgment: whether Defendant copied or distributed any of Plaintiffs' recordings. In his responses to the requests for admissions, Plaintiff did not admit that he copied or distributed any of Plaintiffs' recordings. Plaintiffs have not demonstrated the absence of a genuine issue of material fact, and their motion is therefore due to be denied.

Ms. Lindor's son's attorney has objected to the use of that declaration on a number of grounds, including the fact that it opines on Ms. Lindor's hard drive even though the RIAA has for four and a half months been withholding its analysis of Ms. Lindor's hard drive:

Friday, December 22, 2006

In SONY v. Crain, the RIAA's East Texas case against an elderly Hurricane Rita survivor who has never engaged in file sharing, the RIAA has made a motion to dismiss Ms. Crain's counterclaim for a declaratory judgment of non-infringement. Ms. Crain's attorney, John Stoneham of Lone Star Legal Aid, has opposed the motion, pointing out -- among other things -- that a similar motion had been made by the RIAA in Capitol v. Foster, and rejected.

In UMG v. Lindor, Judge David G. Trager has adopted the Report and Recommendations of Magistrate Judge Robert M. Levy in their entirety, rejecting the two changes in language that had been suggested by Ms. Lindor's attorneys, but held that plaintiffs will have the burden of proving at trial, by a preponderance of the evidence, that defendant actually shared copyrighted files:

Defendant ... objects to the passage "...that defendant actually shared sound files belonging to plaintiffs" because "the mere presence of a shared files folder on an individual'scomputer would not satisfy the requirements of 17 USC 106(3)." Objection to Report and Recommendation, at 1-2. The report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3). Instead, it makes clear that plaintiffs will have the burden of proving actual sharing. Report and Recommendation, at 5 ("At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff’s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.") (emphasis added).(italics supplied)

PARIS: A French court has ruled that music companies and other copyright holders cannot conduct unrestrained Internet monitoring to find pirates.

The decision, which could leave record companies open to lawsuits in France for invasion of privacy, pits European Union-sanctioned data protection rules against aggressive tracing tactics used by the music and film industry.

"The judge's decision defends the privacy of individuals over the intrusion from record labels," said Aziz Ridouan, president of the Association of Audio Surfers, a group that defends people charged with illegal downloading. "This should send a strong message and hopefully affect every one of the hundreds of people defending themselves."

Tuesday, December 19, 2006

In UMG v. Lindor, the RIAA has moved "to strike" the decision of the District Court of Utrecht and the expert witness declaration cited by that decision, which had been submitted by Ms. Lindor's attorneys in opposition to the RIAA's motion for a protective order with respect to the MediaSentry agreements. Surprisingly, the RIAA attached -- as an exhibit to its "motion" -- a portion of a post from this blog:

After more than a year and a half of litigation, the RIAA has sought to drop the case it brought against Patti Santangelo, Elektra v. Santangelo. Its motion papers ask that the dismissal be "without prejudice", which would mean that they could sue her again for the same thing:

The case against Ms. Santangelo's 16-year old son and 20-year old daughter, who were 12 and 16 respectively when the alleged screenshot was taken, continues. We are following it under the heading Elektra v. Santangelo II.

Magistrate Levy has set January 16, 2007, as the deadline for the plaintiffs and defendant to arrange for the production of wholesale pricing documents and confidentiality stipulations in UMG v. Lindor:

Monday, December 18, 2006

We have now obtained a copy of an English translation of the appeals court decision in Foundation v. UPC Nederland, agreeing with the lower court that the MediaSentry investigation by Tom Mizzone was insufficiently reliable to form a basis for directing ISP's to turn over confidential customer information.

The court held:

neither the affidavits nor the cross-examination of Mr. Millin pro[...]vide clear and comprehensive evidence as to how the pseudonyms of the KaAaA or iMesh users were linked to the IP addresses identified by MediaSentry. No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service.

Friday, December 15, 2006

Countering the RIAA's post-argument submission to Magistrate Judge Levy, in support of its protective order motion to conceal the MediaSentry contracts from Ms. Lindor's attorneys, in UMG v. Lindor, Ms. Lindor submitted the expert witness declaration and court's decision in Foundation v. UPC Nederland, which detailed a number of ways in which the investigations of plaintiffs' witness -- Tom Mizzone of MediaSentry -- were inherently unreliable. Ms. Lindor's attorneys said that this heightened the need for a thorough deposition and crossexamination of Mr. Mizzone, since the RIAA's attorneys had revealed at the oral argument that Mr. Mizzone was the sole MediaSentry witness they were intending to call.

Thursday, December 14, 2006

The RIAA has refused to supply defendant's lawyer with a timetable for its production of "all relevant documents" concerning its wholesale prices for downloads in UMG v. Lindor, so after a month of trying to get them to agree to a schedule, Ms. Lindor's attorneys have asked the Magistrate to fix a date. The RIAA responded, but its response does not even suggest to the Magistrate a date on which it would be willing to comply:

Tuesday, December 12, 2006

Magistrate Judge Levy denied Ms. Lindor's motion to preclude the RIAA from attempting to prove copyright infringement as to song files which it had not produced in discovery in UMG v. Lindor, holding that the testimony of MediaSentry's president Gary Millin was not binding on the RIAA and that there were 'factual issues':

Ms. Lindor's attorneys filed an objection to the Report, on the ground that it contained statements, not necessary to the Court's decision, which misconstrued the applicable law regarding "distribution" under the Copyright Act:

The RIAA's lawyers took the highly unusual step of submitting "further authority" to the Magistrate Judge, after the briefing had closed and after the oral argument had taken place, in connection with the RIAA's protective order motion in UMG v. Lindor to declare the RIAA's agreements with MediaSentry to be "privileged":

I am astonished that some two and a half months after making their protective order motion, a month after filing their reply papers, and twelve (12) days after the oral argument of their protective order motion, plaintiffs have taken the highly irregular step of submitting to the court a post-argument submission of a four-year-old published case, one which, astonishingly, (a) relates to no argument either side has made, and (b) is totally inapposite in any event. This can only be attributed to an awareness that all of the arguments they have made to date are entirely frivolous. Unfortunately for them, this new “argument” is equally frivolous.

The case which plaintiffs find so compelling, DirectTV, Inc. v. Trone, 209 F.R.D. 455 (C.D. Cal. 2002), has nothing whatsoever to do with the issues that are before the Court, and contains nothing which the Court and counsel did not already know.

Judge Trager has denied Ms. Schwartz's motion for reconsideration of the judge's December 4th order in Elektra v. Schwartz, which motion had been based upon the RIAA's misstatement about a letter it had received from AOL:

Monday, December 11, 2006

The RIAA has admitted that the letter sent by America Online in Elektra v. Schwartz did no more than identify the owner of an internet access account, and contained no reference to distribution or downloading or copyright infringement.

Timothy Reynolds of Holme Roberts & Owen has filed for pro haec vice admission to the Court (admission for this case only); Ms. Schwartz's lawyer has suggested to Judge Trager that before deciding the motion he should find out whether Mr. Reynolds was in fact the author of the November 1, 2006, letter signed by Richard Guida telling the judge that AOL had confirmed that Ms. Schwartz owned an account that had been used for downloading and distributing hundreds of copyrighted songs.

We are the customers and former customers of the member labels of the Recording Industry Association of America (RIAA). We love music and will gladly pay a fair price for it, but we are outraged by the RIAA's tactics in suing ordinary Americans for filesharing.

We condemn the RIAA's choice to force the family of a 12 year-old girl to forfeit $2,000 - money that could have gone to feed, clothe and educate this honor student. We stand with the retirees, parents, children and others who have been caught in the RIAA's line of fire.

We respect reasonable copyright law, but we strongly oppose copyright enforcement that comes at the expense of privacy, due process and fair application of the law.

We urge you, as our representatives in Congress, to stop this madness.

We oppose the recording industry's decision to attack the public, bankrupt its customers and offer false amnesty to those who would impugn themselves. We call instead for a real amnesty: the development of a legal alternative that preserves file-sharing technology while ensuring that artists are fairly compensated.

In signing this petition, we formally request that the Electronic Frontier Foundation (EFF), as representatives of the public interest, be included in any upcoming hearings regarding the proper scope of copyright enforcement in the digital age.

Saturday, December 09, 2006

In an Oregon case, Elektra v. Perez, 2006 WL 3063493, a judge has denied a defendant's motion to dismiss the RIAA's complaint, saying that the RIAA's allegation of "making available for distribution" is sufficient:

This is the first instance of which we are aware in which a judge has explicitly held that the RIAA's allegation of "making files available for distribution" is sufficient in and of itself to state a claim for relief under the Copyright Act. The decision contains no discussion of the Copyright Act, applicable case law, legal scholarship, or anything else that might give a clue as to how the judge came to agree with the RIAA. We will investigate further to see if the issue was briefed and, if so, how.

The judge also granted the RIAA's motion to voluntarily dismiss without prejudice. Since the dismissal was without prejudice, Mr. Perez was not permitted to get attorneys fees.

Thursday, December 07, 2006

After obtaining a copy from the RIAA's lawyers of the letter the RIAA had received from America Online, and ascertaining that it contained no reference to "downloading" or "distributing" of "copyrighted songs, contrary to the statement made by the RIAA to the judge, lawyers for Rae J. Schwartz in Elektra v. Schwartz have asked Judge Trager to recall his previous ruling which stated that AOL had confirmed downloading and distributing of copyrighted songs:

-it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and

-it surreptitiously installed "spyware" on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45).

Wednesday, December 06, 2006

A new contested case has come up, this one in Charleston, South Carolina: Interscope Records v. Thomas J. Korb.

Mr. Korb asserts a number of defenses, including assertions that he has never even had an account with Kazaa, which he is accused of using; the unconstitutionality of the RIAA's $750-per-song damages theory; that the Kazaa/RIAA settlement bars the RIAA's recovery; that plaintiffs' conduct violates public policy, the federal RICO act, and antitrust law; fair use; unclean hands; and other defenses.

Additional Mr. Korb counterclaims for attorneys fees and costs, and for a declaratory judgment.

Tuesday, December 05, 2006

In Elektra v. Schwartz, in Brooklyn, Judge Trager said Ms. Schwartz's summary judgment motion would probably be denied because the RIAA claims it is in possession of a letter from AOL "confirm[ing] that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed....".

On the last day of the recent Reuters Media and Marketing Summit in New York, Warner Music Group CEO admitted that he was "fairly certain" that one or more of his seven children had downloaded music without the permission of the copyright owner, which Reuters referred to as stealing.

Despite the alleged infringers' proximity to the major label head and his direct awareness of it without the use of ISP subpoenas, somehow no lawsuits were deemed necessary...

Saturday, December 02, 2006

The November 9th decision in UMG v. Lindor, granting defendant's motion for leave to amend answer to include defense of unconstitutionality of RIAA's $750-per-song file damages theory, is now reported in Westlaw, and can be cited as 2006 WL 3335048.

Friday, December 01, 2006

In Elektra v. Schwartz, the RIAA's case in Brooklyn against a Queens mother who has Multiple Sclerosis and who has never engaged in file sharing or movie downloading, Ms. Schwartz's lawyers have responded to the RIAA's letter opposing her request for a premotion conference or waiver of premotion conference, for her summary judgment motion:

Oral argument was held on November 30th before Magistrate Judge Robert M. Levy, in Brooklyn federal court, in UMG v. Lindor, on 3 different topics:

-The RIAA's Motion for a Protective Order Declaring Its Agreements with MediaSentry to be privileged;

-Ms. Lindor's son's objections to plaintiffs' subpoena of his computer; and

-Ms. Lindor's motion to preclude plaintiffs from trying to prove the existence of 38 song files even though they only have 11 song files.

The judge set a briefing schedule for the RIAA's motion to compel production of Ms. Lindor's son's computer and other devices, and reserved decision on the motion to preclude and motion for protective order.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove